In Indonesia, persons with disabilities have long been marginalised in mainstream development policies. The adoption of the United Nations Convention on the Rights of Persons with Disabilities (crpd), which was ratified by Indonesia in 2011, has opened new opportunities for persons with disabilities in the country to participate in the development process. In this regard, the first step toward the implementation of the convention domestically has been undertaken through the enactment of Law No. 8/2016 on Persons with Disabilities where the provisions of the convention are directly adopted. This article traces the development of the new law and how it differs from the previous legislation. We find that the new law is moving away from a long-standing paternalistic view toward disability in Indonesia by advancing a rights-based approach. Despite this substantial change, it remains to be seen how the new law would be able to change the challenging conditions of persons with disabilities in the country.
* Both authors thank Risnawati Utami of Ohana Indonesia, for her valuable comments on the earlier draft of this article.
In the Rio 2016 Paralympics, Ni Nengah Widiasih, an Indonesian female powerlifting athlete, became a bronze medalist, winning the only medal for Indonesia in the most prestigious multi-sport event for persons with disabilities worldwide. Widiasih was born and raised in a poor family in a remote village in the District of Karangasem, Bali, Indonesia. At the age of three she lost her legs after contracting polio, and subsequently has spent her life in a wheelchair.1 Despite such impairment, she proves what she, and other persons with disabilities, are capable when the barriers are broken down and they are well supported by their social environment.
Still in Indonesia, however, a million other persons with disabilities remain at the margin of development. They require the state to be responsible for respecting, protecting, and fulfilling their rights so that they can pursue their own dreams. Normatively, Indonesia is also one of several countries that have agreed to ratify the United Nations Convention on the Rights of Persons with Disabilities (crpd) and the United Nations Sustainable Development Goals (sdgs) in which disability is one indicator to the realisation of these goals.2 Following its commitment to the international community, the Government of Indonesia has recently enacted new legislation, the Law No. 8/2016 on Persons with Disabilities. At the domestic level, this enactment was an outcome of long struggles advocated by disabled people’s organisations (dpos) and disability concerned groups who considered the previous legal framework dealing with disability enacted under the authoritarian regime of the New Order, Law No. 4/1997 on Handicapped Persons (Penyandang Cacat), to be no longer relevant to the current social and political circumstances.
In this article we examine the legal frameworks governing the rights of persons with disabilities in Indonesia. In so doing, we will compare and contrast the new legislation on these matters against the previous framework using a normative approach combined with a document study. The article is divided into two parts. The first will discuss the context and the conditions of persons with disabilities in Indonesia, followed by a brief discussion of the historical development of the crpd. The second part will discuss the legal frameworks dealing with disability in Indonesia. Here, we argue that the adoption of the crpd’s provisions in Indonesia’s new legislation is timely after persons with disabilities across the archipelago having been marginalised socially, economically, culturally, as well as politically for a very long time. Comparing the Persons with Disabilities Law No. 8/2016 to the Handicapped Persons Law No. 4/1997 reveals that there has been a substantial shift in the legal regime dealing with disability issues from a charity-based perspective to a rights-based approach. This discussion will be followed by a demonstration of future challenges for effectively enforcing the new Persons with Disabilities Law in Indonesia. Finally, several conclusions are drawn.
Law and Disability
Disability in Context
Disability is understood differently within scholarly and policymaking debates. There are two models commonly used in these contexts. The first is the medical model which embraces disability as a personal misfortune due to mental or physical impairment.3 Accordingly, persons with disabilities are seen as an object of medical treatment and rehabilitation to be ‘fixed’, cured, or assimilated into the society.4 However, this model, which has been the most dominant approach to conceptualising disability in public policy, overlooks the social environment that have shaped disabling conditions.
The second model has emerged to criticise the medical model by putting the social environment in the spotlight. This model, which is known as the social model of disability, starts by differentiating ‘disability’ and ‘impairment’.5 Drawing from Oliver’s arguments, Harpur clarifies that this distinction demonstrates that ‘it is not a person’s impairment that makes them disabled but the way in which society is structured, which means the impairment becomes disabling’.6 Hence, to enable persons with impairments to realise their capacity and fully participate in society means dismantling the social and physical barriers built by society, rather than fixing those persons.7
A closer look at the debate between the medical and social model of disability reveals that both models lie philosophically on a Western dualism spectrum, individuality versus collectivity. On the one hand, the medical model conceives disability as centered at the individuality of a person’s impairment where integration to the wider society requires individual treatment or rehabilitation. The social model, on the other hand, emphasises the collective experiences of oppression toward persons with impairments in a disabling society. Accordingly, collective actions are required to build a collective identity in order to fight discrimination and oppression.8
Given the premise that a disabling society is a product of the political, economic, and cultural domination of non-disabled people, the social model consequently creates an antinomy between disabled and non-disabled people in which the former is seen as being oppressed by the latter.9 Hence, only disabled people know what their interests are, as the group who experiences such oppression and discrimination. They are the only actor who can change such disabling conditions for themselves. This creation of a collective identity, disabled people versus non-disabled people, as observed by Humphrey, may hinder a wide and effective collaborative action involving both disabled and non-disabled people.10
In Asian contexts, Miles has shown the inadequacy of those two models to explain disability.11 In many Asian societies, including Indonesia, one particular explanation goes beyond these two models, namely the religious or philosophical notion of disability. In this regard, disability is understood as a consequence of past individual actions (karma) through which society could learn collectively to improve their actions in achieving spiritual progression.12 Neglecting the existence of persons with disability in a given society has spiritual consequences for all members of society.13
Although this cultural notion of disability remains popular in everyday life in Indonesian society, the medical model has been the dominant approach in public policies. Politically, the medical model reflects a paternalistic state. During the authoritarian regime of Suharto, for instance, through the Law No. 4/1997 on Handicapped Persons, persons with disabilities were conditioned to be a passive recipient of government policies through rehabilitation and as an object of control and charity. Meanwhile, other models especially the social model that might provide autonomy and even radicalise disabled people against the state was seen suspiciously in order to prevent transformation into a social movement which would create political and social instability.
The fall of the Suharto regime in the late 1990s has opened political opportunities for persons with disabilities to associate and organise their interests collectively and freely. With these opportunities, the social model of disability has gradually become more popular among dpos and has not been seen as radical as in industrialised countries. This is because the rapid development of dpos in Indonesia is relatively a post-authoritarian phenomenon, and they remain weak and fragmented. In order to put forward their interests on public policies they have to work collaboratively with other non-governmental organisations (ngos), such as human rights or legal aid institutions. Thus, the language of rights that once was highly risky and political during the Suharto regime has become a common dominator that glues dpos and concerned ngos together in disability advocacy in the country.
A Working Definition of Disability
The definition above combines both medical and social models of disability. According to this definition, it is estimated that around one billion people or 15 per cent of the world’s population are regarded as persons with disabilities. The numbers are growing due to an aging population and an increase in chronic diseases, such as diabetes and mental illness, as well as other factors including social and natural disasters, lifestyles, and road traffic crashes.15
an umbrella term for impairments, activity limitations, and participation restrictions. Disability refers to the negative aspects of the interaction between individuals with a health condition (such as cerebral palsy, down syndrome, depression) and personal and environmental factors (such as negative attitudes, inaccessible transportation and public buildings, and limited social supports).14
In Indonesia, according to the Ministry of Social Affairs, as cited by the International Labour Organization, it is reported that around 11.6 million people are persons with disabilities.16 The who, however, estimates that it is around 24 million people, or 10 per cent of the total population.17 The difference in number is a logical consequence of the way disability is defined in surveys or censuses. The lack of data and statistics has also been one of the primary concerns expressed in the crpd, especially in relation to Article 31. This is because the absence of reliable data may hinder the creation and implementation of effective policies to support persons with disabilities.
The lack of reliable data on disability represents the normalised marginalisation of persons with disabilities from mainstream development policies in many countries. This lack of data leads to several other challenges faced by disabled people, including inadequate policies and standards, negative attitudes, lack of provision of services, problems with service delivery, inadequate funding, lack of accessibility, and lack of consultation and involvement.18 These challenges, of course, have become more acute in the context of developing countries where the issues of disability are given less priority in the development process.19 In many cases, persons with disabilities in developing countries also tend to be regarded as a social, political, economic, and cultural burden in development.20
In the context of poverty, for instance, it is now becoming more apparent that there is a close connection between poverty and disability. Although disability does not necessary occur in poor families, persons with disabilities who are from these economically challenged families are facing more challenges than persons with disabilities from wealthier families. The who and the World Bank have shown that persons with disabilities are more likely to be trapped under the poverty line because of their inability to access basic needs, including education and health services, and in many cases this inability may be caused by their challenging economic circumstances.21 It is estimated that the illiteracy rate among women with disabilities is higher than that of men with disabilities (1 per cent literacy rate for women with disabilities compared to 3 per cent literacy rate for all persons with disabilities).22 This shows that women with disabilities are usually more vulnerable than their male counterparts because they struggle against both gender-based and physical/intellectual ability-based discrimination.23
In general, the forms of discrimination faced by persons with disabilities can be physical, legal, or even cultural. The ways in which society sees people with disability informs the extent to which persons with disabilities are culturally accepted as members of such a society. Culture-based discrimination, for example seeing disability as a ‘curse from the divine power’, may cause persons with disabilities to live in a more challenging cultural condition.24 In Indonesia, a study conducted by Antoni on the representation of persons with disabilities in Indonesian mass media concludes that news about persons with disabilities tends to focus on their impairments rather than the persons themselves.25 He argues that this tendency is partly informed by the journalists’ inadequate awareness. Prejudice towards persons with disability reflects the ways in which Indonesian society in general sees the issues of disability as embarrassing and persons with disability as objects of charity.26
Physically, another type of discrimination often faced by persons with disability is the minimal public access to public transportation or infrastructure. This is because of the limited regulations that support the rights of persons with disabilities. Although there are several regulations addressing persons with disabilities, most have a narrow perspective on disability issues, and are primarily based on provision of charity rather than recognition of their rights.27 As a result, providing accessible infrastructure is considered a residual and secondary agenda in development projects, resulting in the allocation of limited financial resources. These persistent challenges and marginalisation of persons with disabilities in Indonesia is to a large extent caused by this charity paradigm which in turn informs the ways in which public policies toward persons with disabilities are planned, structured, and implemented. At an international level, the absence of legally binding instruments for setting a proper standard paradigm of disability has also played an important part. This absence was a main consideration when the international community decided to propose a special treaty dealing with the rights of disabilities.28
Since the early 1970s, the international community became increasingly concerned with issues of disability. Milestones in this early period included the 1971 Declaration on the Rights of Mentally Retarded Persons and the 1975 Declaration on the Rights of Disabled Persons. Although both explicitly articulated the issues of disability using the language of rights, they were criticised by persons with disability because of their ‘paternalistic attitudes’ as well as the implementation of a medical and charity paradigm toward disability.29 In the early 1980s, the United Nations (un) adopted the 1982 World Programme of Action concerning Disabled Persons, which stressed the responsibility of states for ‘promoting effective measures for prevention of disability, rehabilitation and the realization of the goals of “full participation” of disabled persons in social life and development and of “equality”’.30
This was followed by the 1983 to 1992 un Decade of Disabled Persons and a comprehensive study on the human rights and disability nexus conducted by the appointed Special Rapporteur on Disability.31 As a result, two international instruments on disability were adopted: the 1991 Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Care (the mi Principles);32 and the 1993 un Standard Rules on the Equalization of Opportunities for Persons with Disabilities (the Standard Rules).33 Like the previous instruments, they continued to use the medical model as the dominant approach; however, during this period the social model emerged from the disability discourse at the international level.34 However, the instruments that were adopted during the 1970s to 1990s were non-binding or soft law in nature.35
Since the early 2000s, aspiration to enact a legally binding international instrument dealing with the rights of persons with disability emerged. The Government of Mexico proposed, before the un General Assembly, the development of instruments following the adoption of the Commission on Human Rights’ Resolution 2000/51 on the Human Rights of Persons with Disabilities. During the 56th session of the un General Assembly, in December 2001, Resolution 56/168 was passed to establish an ad hoc committee ‘to consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the fields of social development, human rights and non-discrimination’.
For five years, the process of drafting the convention was led by an ad hoc committee involving non-governmental actors especially dpos. Lord, Souzzi, and Taylor claim that ‘[t]his participation is critical to understanding the direction and shape of the negotiation and the derivative text’.36 Finally, on 13 December 2006, the crpd was adopted as the first legally binding human rights instrument dealing with disability. It was put into force on 3 May 2008 after 20 countries signed the treaty. Many observers enthusiastically stated that the Convention represented ‘a progressive development of existing human rights law’,37 and a ‘great landmark in the struggle to reframe the needs and concerns of persons with disability in terms of human rights’.38 Even Louise Arbour, the then un High Commissioner for Human Rights, hailed the adoption of the crpd and characterised it as enshrining ‘a “paradigm shift” in attitudes that move from a view of persons with disabilities as objects of charity, medical treatment and social protection to subjects of rights, able to claim those rights as active members of society’.39
The Structure and Contents
In terms of structure, the crpd comprises 25 preambular paragraphs and 50 substantive articles. The preamble recognises that ‘disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’. This shows how disability is understood by the Convention as an ‘evolving concept’ that was proposed by the International Disability Caucus (idc).40 Moreover, it shows a departure from the medical model of disability to incorporate what Harpur describes as a ‘non-radical social model’.41 He further argues that the ‘non-radical social model’, in which the new rights-based paradigm adopted by the crpd, has brought the disability discourse and practice beyond the two traditional models.42
The articles of the crpd themselves could be categorised into several sections. They are the objectives and scope, the universal rights, the substantive rights, compliance mechanisms, and the crpd’s operative rules.43 The objectives and scope articulated in Articles 1 and 2 of the Convention aims at promoting, protecting, and ensuring the ‘full enjoyment of all human rights and fundamental freedoms by all persons with disabilities’ and respecting their dignity. These are followed by a set of universal rights articulated in Articles 3 to 9 which comprises the general principles and general obligations of the states parties, including undertaking necessary measures to pursue the above objectives. In Articles 10 to 30, the crpd stipulates substantive rights to ensure the universal rights are complied with by the states parties. There are several novel formulations of rights specific to persons with disabilities and not recognised by classical human rights treaties, such as living independently and being included in the community (Article 19), personal mobility (Article 20), and habilitation and rehabilitation (Article 26).44
The compliance mechanisms established by the crpd are outlined in Articles 31 to 40. These include the collection of data and statistics on disability as the first step to enable effective formulation and implementation policies by states parties (Article 31), international cooperation (Article 32), the designation of one or more focal points and the establishment of a domestic coordinative mechanism (Article 33), the establishment of the Committee on the Rights of Persons with Disabilities (Committee) at the international level (Article 34), and submission of reports to the committee on the state of states parties’ obligations (Article 35). The convention is closed by a treaty’s operative rules, including the provisions on ratification, entry into force, and so forth in Articles 41 to 50.
The Optional Protocol
One important element of the crpd is the Optional Protocol (Protocol). Like many other international human rights treaties, the Protocol, once ratified, would give opportunities for individuals as citizens of a state party to report to the treaty governing body regarding violations of the crpd. In many cases, mechanisms provided by optional protocols have also ‘generated a wealth of jurisprudence illuminating the content of treaty provisions’.45 Learning from the experience of the lack of implementation from the International Covenant on Economic, Social, and Cultural Rights (icescr), partly due to the delay in adopting optional protocols,46 the crpd Protocol was adopted at the same time as the Convention.
The Protocol comprises 18 articles. Article 1 stipulates that states parties deem the Committee competent to ‘receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by the State Party of the provisions of the Convention.’ These communications are dealt with anonymously in order to protect the identity of the victims and the Committee can request that the state party, where the alleged violation has occurred, provide clarification or explanation within six months (Articles 2 and 3 of the Protocol). In the case of grave and systematic violations, the Committee may invite the state party concerned to ‘cooperate in the examination of the information and to this end submit observations with regard to the information concerned’ (Article 6).
It was hoped that a high number of ratification of the crpd would lead to a relatively equal number of ratifications of the Protocol. To date, there are only 88 states who have ratified the Protocol out of the 166 states that have ratified the crpd. Indonesia signed the crpd on 30 March 2007 and ratified it on 30 November 2011 through the Law No. 11/2011 concerning the Ratification of the United Nations Conventions on the Rights of Persons with Disabilities. However, it has not yet ratified the Protocol. Following the ratification of the crpd, the Government of Indonesia promulgated the new Law on the Persons with Disabilities No. 8/2016, to which we now turn.
The New Law on Disability in Indonesia
The Development of the Law on Disability
Before the adoption of the crpd, Indonesia had a national legal instrument governing disability. It was Law No. 4/1997 on Handicapped Persons (Penyandang Cacat) which was enacted under Suharto’s authoritarian regime. The Law was dominated by the medical and charity model of disability, in which persons with disabilities were considered physically and mentally abnormal and objects for rehabilitation, their social welfare pursued through the establishment of disability nursing houses funded by the government or charity groups.
The fall of Suharto in the late 1990s brought the Reformation Era. This has been undertaken by changing the constitutional and legal-institutional barriers that hinder more open and democratic political conditions in the country through, among other measures, the amendments of the 1945 Indonesian Constitution to articulate democracy and human rights more explicitly, the enactment of Law No. 39/1999 on Human Rights, as well as the ratifications of two major international human rights instruments, the 1966 International Covenant on Civil and Political Rights (iccpr), and the 1966 International Covenant on Economic, Social, and Cultural Rights (icescr), in 2005. Human rights have been recognised as an essential element of a democratic society and have become a new mantra in development discourse and practices; this is despite the fact that their protection remains contentious in Indonesia.47
In the context of disability, however, the progress of the human rights perspective has been gradual and slow. Partial rights of persons with disabilities have been stipulated and dispersed in many laws and regulations, including the Law No. 22/2009 concerning Traffic and Transportation, the Law No. 28/2008 on Building, and Law No. 20/2003 on the National Education System. However, they are not implemented effectively. Irwanto and others argue that this ineffectiveness is due to a lack of information and awareness from persons of disabilities of the existing legal frameworks, which are underutilised to further their rights and interests.48 This argument is correct but incomplete and ahistorical because Irwanto and others ignore the fact that a long process of marginalisation has created conditions where the majority of persons with disabilities lack access to education and has increased illiteracy.49 In Indonesia, it is estimated that almost two thirds of children with disabilities have no access to education.50 Certainly, the blame should not be on their unawareness; instead attention should be directed at reforming social and political barriers. The state has failed to fulfill the rights of persons with disabilities, including the right to education, and to comply with its own laws and regulations for the benefit of disabled people.
Paradigmatically, many of those existing laws and regulations that incorporate disability issues retain the medical model of disability. For example, Law No. 11/2009 concerning Social Welfare – a law formulated and adopted during the reformation era – regards persons with disabilities as socially dysfunctional, grouping them with prostitutes, former prisoners, drug-users, and beggars.51 Similar to the Law No. 4/1997 on Handicapped Persons, the Social Welfare Law also stresses the rehabilitation of persons with disabilities in order for them to be socially functional; this rehabilitation may be undertaken persuasively or even coercively by the state (Article 7(1) and (2) of the Social Welfare Law).52
The legal regimes dealing with disability are considered no longer relevant sociologically, juridically, or philosophically in the contemporary Indonesian context.53 Sociologically, disability should no longer be seen as an embarrassment or ‘personal tragedy’, which has led to the view that persons with disabilities are socially dysfunctional. Juridically, human rights are clearly articulated in the Indonesian Constitution and many legal instruments have been enacted and ratified by Indonesia; they should be used as the legal and constitutional bases to respect, protect, and ensure the fulfillment of the rights of persons with disabilities. Philosophically, considering the outdated medical model of disability, disability should be seen through the lens of rights and humanity.54
Following the adoption of the crpd at the international level, a disability advocacy group in Indonesia worked to demand that the government to ratify the convention and to propose new legislation governing persons with disabilities. Given their inexperience in policy advocacy, dpos joined collaboratively with other civil society organisations focusing on legal aid, human rights and policy advocacy to form a National Coalition for Disabled People.55 Their advocacy was founded on Article 4 of the crpd which obligates Indonesia as a state party to the convention to ‘adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention’ and to ‘take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’. In this regard, the disability advocacy groups involved used the transformative vision of the Convention as ‘a vehicle for fostering national-level disability law and policy changes’.56
In 2011, the government finally ratified the convention and also agreed to formulate new legislation dealing with disabled people. In order to push forward their interests regarding the new legislation, dpos together with other concerned groups demanded active participation of disabled people in the law-making process. They used the slogan of ‘nothing about us, without us’, a slogan popularised during the crpd drafting process. Besides getting closely involved in the law-making process, they also exerted pressure from outside the parliament through a series of demonstrations and media campaigns to build supportive public opinion. Coalitions between disabled people advocacy groups and like-minded members of parliament were also built.
In this process, two critical issues were debated. The first involved the proposal in the earlier draft of the law to appoint the Ministry of Social Affairs as the leading sector to coordinate all government agencies dealing with disability issues.57 The National Coalition for Disabled People saw this as a distortion and reduction of the ‘holistic approach’ in the crpd in which disability issues are regarded as cross-sectoral issues rather than merely a social issue. They had learned from the previous Law No. 4/1997 on Handicapped Persons where the Ministry of Social Affairs was also designated as the leading sector and disability issues beyond social affairs, such as education, public infrastructure, the rights of women and children with disabilities, as well as employment, had been difficult to implement as the ministry could not effectively coordinate all other relevant ministries to undertake their roles in implementing the law. Accordingly, the National Coalition demanded the establishment of a national coordinative mechanism under the Vice President.58
The second issue involved institutional arrangements. Following the crpd, the National Coalition demanded that the draft legislation include the establishment of a national commission on disability. However, the government refused this demand arguing that Indonesia already had many commissions and bodies dealing with specific issues which would make coordination even more challenging, and financially the establishment of a new commission would implicate the national budget.59 Due to active participation and pressure from advocacy groups, the article on the establishment of the national commission was finally incorporated in the new legislation although they failed to get rid of the provision designating the Ministry of Social Affairs as the leading sector. Although several weaknesses remained, as discussed below, on 17 March 2016, a new piece of legislation dealing with disability was finally adopted by the parliament and the national government. The Law No. 8/2016 on Persons with Disabilities, opened a new era in the disability rights-based approach in Indonesia.
The Disability Legal Frameworks: A Comparison
This sub-section undertakes a comparison between the two domestic legal instruments dealing with disability in Indonesia: the Handicapped Persons Law No. 4/1997, and the Persons with Disabilities Law No. 8/2016. It compares the terminology used, considerations, objectives, the main legal substance, and compliance mechanisms. It is clear from its title that the Law No. 8/2016 concerning Persons with Disabilities (Penyandang Disabilitas) directly adopts the terminology used by the crpd which defines persons with disability as ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’ (Article 1(1) of the 2016 Law and Article 1 of the crpd). Prior to this change, Law No. 4/1997 used the term ‘penyandang cacat’ (handicapped persons), which is defined as ‘those who have physical and/or mental abnormalities [or handicaps] which consequently becomes an obstacle or obstruction for them to perform activities properly’. In fact, this is not only a matter of semantics but reflects the paradigm shift adopted in the legislation which in turn determines what disability is and is not, and consequently whether certain people are bound by its provisions and entitled to the rights set out in the new legislation.
The new paradigm adopted is evident from a comparison of the preambles and respective objectives. The dominant medical and charity model of disability is clear in the Handicapped Persons Law No. 4/1997. The law concerned itself with the trend showing that persons with disabilities have increased quantitatively, such that a legal instrument to prevent these increases and to provide them with social welfare programs was needed. In contrast, the historical marginalisation of persons with disabilities, including limitations, barriers, and the denial of rights, which have forced them to live in fragile, underserved, and poor conditions, is clearly articulated in the new Persons with Disabilities Law No. 8/2016.60 Moreover, the objectives of the crpd to recognise the need for persons with disabilities to realise their potential and abilities in contributing to society through the promotion, protection, and enjoyment of their human rights, fundamental freedoms and full participation are directly adopted in the Law. Hence, both the crpd and the Persons with Disabilities Law are heavily informed by what Harpur terms as ‘a non-radical social model’ of disability through the adoption of a human rights-based approach.61
With regards to the content, the instruments are devoted specifically to persons with disabilities. Their sets of rights could be divided into two: universal rights, a set of human rights applicable to all human beings due to their inherent dignity, and substantive rights, a specific set of rights for persons with disabilities as the foundational rights necessary to enhance their universal rights.62 The universal rights stipulated in the Handicapped Persons Law are only partial, and include the right to education, the right to employment, and the right to personal development. It should be noted that these rights were also qualified by the phrase ‘in accordance to the types and degree of their impairment, education and abilities’.63 The Persons with Disabilities Law, like the crpd, however, stipulates a complete set of universal rights, from civil and political rights to economic, social, and cultural rights.64
In terms of substantive rights, while the previous Handicapped Persons Law entitled persons with disabilities to accessibility and rehabilitation, the substantive rights set forth by the new Persons with Disabilities Law, following the crpd, include accessibility, ‘the right of living independently and being included in the community’, ‘the right to personal mobility’, and ‘the right to habilitation and rehabilitation’. By incorporating these rights the law recognises the personal autonomy of persons of disability. In this context, habilitation and rehabilitation are not seen as projects imposed by the state to ‘fix’ persons with disability but as rights recognising the individual dignity and decision-making capacity of the persons concerned. This recognition was not apparent in the previous legislation; the 1994 Law on Handicapped Persons tended to treat persons with disabilities as dependent, under someone else’s guardianship, and disregarded their dignity and personal choices.
In relation to compliance mechanisms, a domestic legal instrument on persons with disabilities should provide more detailed mechanisms than the crpd as an international standard setting instrument. In this regard, the Persons with Disabilities Law No 8/2016 elaborates further the state party’s responsibility as stipulated in the crpd for the domestic sphere of implementation, such as the coordination between government ministries, government tiers, dpos, and ngos, synchronisation programmes and policies, and the preparation of budgets and supervision. The Handicapped Persons Law No. 4/1997 which was heavily informed by the charity paradigm tended to pursue its objective through providing a counseling procedure to improve quality of life, and helping disabled persons develop skills needed for generating income under the direction of state policies.
With regards to sanctions, the Handicapped Persons Law No. 4/1997 was divided into two categories: administrative and penalties for institutions and companies who marginalized persons with disabilities in the spheres of work and education. The Handicapped Persons Law did not recognize any criminal sanctions. Meanwhile, the new Persons with Disabilities Law No. 8/2016, besides providing for administrative and civil sanctions, stipulates a criminal sanction for those who deter persons with disabilities from enjoying their rights. This criminal sanction can apply to guardians of persons with disabilities who undertake activities that may affect the rights and property of their ward without a court approval.65
In brief, the two pieces of domestic legislation governing disability reflect the different social, economic, political and cultural conditions from which they emerged. The paternalistic views of Law No. 4/1997 in which disabled people were seen as objects of state control were in line with the authoritarian state of the New Order regime. This regime attempted to repress many social and political interests that might have disturbed the stability of the regime, including the collective interests of disabled people in articulating their autonomy and in realising their rights as citizens. In contrast, Law No. 8/2016 recognises the autonomy and the rights of persons with disability reflecting the spirit of democracy in the post-authoritarian era of Indonesia where people with disability have proven that they are able to participate actively in the law-making process and to organise themselves collectively and to freely demand their interests in public policies. This recognition of the autonomy and rights of persons with disabilities, which moves away from a paternalistic view, marks a substantial shift in disability law in Indonesia. Despite such achievements, there are still several challenges ahead.
Legal and Institutional Loopholes
Many opportunities are provided by the new international and national legal regimes dealing with disabilities. However, in realising their objectives in Indonesia, there are several challenges that remain unresolved. These challenges could be legal, institutional, or political. With regards to the legal challenges, the primary legal loophole in the implementation of the crdp in the country is the fact that Indonesia has not yet ratified the Protocol. As discussed above, the Protocol sets out the mechanisms through which a state party could be held responsible under international law when it fails to comply with the convention. The unwillingness of Indonesia to ratify the Optional Protocols to the icescr and iccpr has also long been criticised for perpetuating impunity in Indonesia.66 Possibly, the crpd will face a similar problem of implementation until the Protocol is ratified by Indonesia in order to deter violations of the convention on the ground.
In the context of international law, given the essential role of institutions for monitoring and evaluation, Lyster argues that an international convention without institutional arrangements will lead to a ‘sleeping treaty’.67 Similarly, this is also applicable to the domestic legal system where the institutional arrangement plays an important role in ensuring the implementation of legislation. These institutional issues have also been a major concern in many developing countries, including Indonesia, due to a lack of coordination among governmental agencies. This is why the crpd, especially Article 33(1), emphasises the need for institutional coordination as essential to the effectiveness of the protection and fulfillment of the rights of persons with disabilities as a ‘cross-cutting issue’.68 In Idonesia’s decentralised era, institutional coordination has been chronic not only among national government agencies but also between government tiers where contestations have been more frequent, especially on development issues.69
On the issue of institutions, the retention of the Ministry of Social Affairs as the leading sector in the new law has triggered pessimism among dpos and other disabilities concern groups. Given previous negative experience, dpos and disabilities concern groups will likely have to continue and rely on ‘door-to-door’ advocacy toward the other ministerial departments to bring about changes.70 The only source of institutional optimism for dpos and disabilities concern groups is the establishment of the National Commission on Persons with Disabilities (thereafter the National Commission) in Article 131 of the Law. This establishment of a national, independent commission for monitoring and evaluation is obliged by Article 33(2) and (3) of the crpd. According to Article 149 of the Persons with Disabilities Law, the national commission should be established within three years after the law is enacted or by April 2019. The organisational structure, composition, and procedures of the commission will be stipulated further by a presidential decree. In the context of Southeast Asian countries in general, Eldridge argues that the effectiveness of a national human rights institution depends on its relative autonomy from the government.71 Hence, the effectiveness of this new commission dealing with disability in Indonesia will also be informed by the extent to which it is structurally independent from the government for undertaking its mandates.
Besides the structural organisation of the new commission, its effectiveness will also depend upon the extent to which resources are provided and mobilised to support the commission. Unlike the National Commission on Human Rights (Komnas ham) and the National Commission on Anti-Violence against Women (Komnas Perempuan) where its foundational legislation explicitly states the financial resources provided to both commissions supported by the national government budget,72 in the Persons with Disabilities Law, responsibility for the financial resources for the National Commission on Persons with Disabilities is not explicitly stated. Article 135 of the Persons with Disabilities Law No. 8/2016 only stipulates that ‘The [National] Government and Regional Government oblige to provide a budget for implementing the respect, protection and fulfillment of the rights of the persons with disabilities’.73 This article implies that such a budget is for conducting programs to pursue the objectives of the law without necessarily being channeled through the commission. Thus, persons with disabilities will need to wait with the expectation that such financial support will be clearly stated in the presidential decree concerning its establishment; otherwise, the commission that is mandated by the law to monitor and evaluate the protection, promotion, and fulfillment of the rights of persons with disabilities will be financially paralysed.
As discussed above, the new law on disability in Indonesia has adopted a human rights paradigm. Analogous to the adoption of a human rights-based approach in environmental matters,74 the adoption of this approach in the context of disability will also have several advantages.75 First, the use of a rights-based approach provides a strong claim as an absolute entitlement for persons with disabilities. Second, dpos and concerned groups will be more likely to rally and advocate around a general statement of rights, rather than the highly medical, bureaucratic regulations expressed in previous legislation on disability. Third, a human rights approach can provide the conceptual link to bring local, national, and international issues within the same framework of legal judgment. Finally, a general expression of rights can be interpreted creatively as issues and contexts change.
However, not all disability issues can be resolved through a human rights-based approach. As a modest form of the social model of disability, the human rights approach will not satisfy the more radical leaning of some disability advocates. First, a rights-based approach may not adequately address the political economy questions which underlie oppression and the construction of barriers to persons with disabilities in society. As Oliver has argued, the oppression faced by persons with disabilities ‘is rooted in the economic and social structures of capitalism’.76 In many cases, human rights, especially the right to private property, is regarded as the foundational element of capitalism itself.77 Second, the language of ‘rights’ may possibly be countered by other types of rights, especially in the context of policy-making. This is why David Kennedy, a prominent figure among critical legal scholars, skeptically argues that ‘rights conflict with one another, rights are vague, rights have exceptions, many situations fall between rights’.78
Finally, and related to the second point, the legal entitlement of the rights of persons with disabilities would not necessarily change the conditions facing person with disabilities unless they possess economic and political power to intervene in policy-making practices or mobilise legal institutions and mechanisms effectively for their benefit. This is particularly challenging in Indonesia, a country where human rights violations have been a persistent feature in the operation of the state’s economy; political elites advance their interests in economic development79 and impunity has been rampant.80 Moreover, dpos and other social forces, including ngos and disabilities concern groups, that are expected to be agents of change that challenge this dominant path of development remains fragmented.81 Hence, it remains to be seen how dpos and other concern groups can navigate the new law dealing with disability and even the crpd to change the challenging conditions of persons with disabilities in the country.
Persons with disabilities in Indonesia have long been marginalised in mainstream development policies. More recently, the adoption of the crpd, ratified by Indonesia in 2011, has opened new opportunities for persons with disabilities in the country to participate in the development process. In order to implement such an international convention, the Government of Indonesia has enacted new legislation, namely the Persons with Disabilities Law No. 8/2016, to replace the Handicapped Persons Law No. 4/1997 which was considered irrelevant after the social, economic, and political contexts of the reform era in Indonesia. Indeed, the new law has moved away from a medical and charity model of disability to adopt a human rights-based approach. Substantially, the recognition of the autonomy and rights of persons with disability should be seen as an attempt to move away from the paternalistic view inherited by the authoritarian regime in the previous legislation. Despite this significant shift, the new disability legal regime in Indonesia has several challenges going forward, including legal and institutional loopholes and more importantly the social-political barriers that possibly hinder the effective implementation of the new law to pursue its objectives to respect, protect, and fulfil the rights of persons with disabilities in Indonesia.
Ahmad Rofiq and Aisha Shaidra, ‘Ni Nengah Widiasih dan Mimpi Gimnasium’, 30 September 2016, Tempo (Indonesia, 30 September 2016) <https://cantik.tempo.co/read/news/2016/09/30/335808603/ni-nengah-widiasih-dan-mimpi-gimnasium> accessed on 2 October 2016.
There are seven references related to disability explicitly articulated in the Sustainable Development Goals (sdgs), including the contexts of education, health services, employment, transport systems, public spaces, as well as socio-economic and political empowerment. For further elaboration see the un desa/dsps/Secretariat for the Convention on the Rights of Persons with Disabilities, ‘Disability Indicators for the sdgs’ (United Nations desa 2015) <www.un.org/disabilities/documents/disability_indicators_aug_2015.docx> accessed on 8 November 2016.
Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1, 5.
Ibid; Paul Harpur, ‘Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities’ (2012) 27 Disability & Society 1, 2.
Ibid. See also Michael Oliver, The Politics of Disablement (Macmillan 1990).
Rosemary Kayess and Phillip French (n 3) 6; Janet E. Lord, David Suozzi, and Allyn L. Taylor, ‘Lessons from the Experience of u.n. Convention on the Rights of Persons with Disabilities: Addressing the Democratic Deficit in Global Governance’ (2010) 38 Journal of Law, Medicine & Ethics 564.
John Swain and Sally French, ‘Toward an Affirmative Model of Disability’ (2000) 15 Disability and Society 569–528.
Jill C. Humphrey, ‘Researching Disability Politics, or, Some Problems with the Social Model in Practice’ (2000) 15 Disability and Society 63–85.
M. Miles, ‘Disability on a Different Model: Glimpses of an Asian Heritage’ (2000) 15 Disability and Society 603–618.
Akhmad Sholeh, ‘Islam dan Penyandang Disabilitas: Telaah Hak Aksesabilitas Penyandang Disabilitas dalam Sistem Pendidikan di Indonesia’ (2015) 8 Palastren 293–319.
World Health Organization and the World Bank, Summary: World Report on Disability (World Health Organization 2011) 7.
International Labour Organization (ilo), Inklusi Penyandang Disabilitas di Indonesia (ilo, Jakarta 2013) 2.
World Health Organization and the World Bank (n 14) 9–10.
Hisayo Katsui, ‘Downside of the Human Rights-Based Approach to Disability in Development’ (2008) Institute of Development Studies, Helsinky University, Working Paper 2/2008, 20–21 <www.helsinki.fi/kehitysmaatutkimus/tutkimus/HRBA.doc> accessed 20 November 2016. See also Robert Metts, ‘Disability and Development’ (2004) (Background Paper Prepared for the Disability and Development Research Agenda Meeting, Washington d.c., 16 November 2004) <siteresources.worldbank.org/DISABILITY/Resources/280658-1172606907476/mettsBGpaper.pdf> accessed 16 November 2016; Sophie Mitra, ‘Disability and Social Safety Nets in Developing Countries’ (2005) The World Bank Social Protection Discussion Paper Series No. 0509 <siteresources.worldbank.org/SOCIALPROTECTION/Resources/0509.pdf> accessed on 20 November 2016.
World Health Organization and the World Bank (n 14) 11.
Lord, Suozzi, and Taylor (n 7) 565.
Sri Moertiningsih Adioetomo, Daniel Mont, and Irwanto, Persons with Disabilities in Indonesia: Empirical Facts and Implications for Social Protection Policies (Demographic Institute, Faculty of Economics, University of Indonesia 2014).
See e.g. Theresa B. Abang, ‘Disablement, Disability and the Negerian Society’  3 Disability, Handicap and Society 71; Pauline A. Otieno, ‘Bablical and Theological Perspectives on Disability: Implications on the Rights of Persons with Disability in Kenya’ (2009) 29 Disability Studies Quarterly <http://dsq-sds.org/article/view/988/1164> accessed on 8 November 2016; Pokja Disabilitas, ‘Naskah Akademik ruu Penyandang Disabilitas’ (Pokja Disabilitas 2015).
Tsaputra Antoni, ‘Portrayals of People with Disabilities in Indonesian Newsprint Media: A Case Study on Three Indonesian Major Newspaper’ (2016) 3 Indonesian Journal of Disability Study 1.
In the academic study for the Persons with Disabilities it is stated that ‘common social perceptions that tend to descriminate people with disabilities have a significant implication for them to find a decent job for their survival. One of these discriminative treatments is the limited public facility, working opportunities and so forth. This is the implication of the lack of regulations to provide rights and opportunities for persons with disabilities to participate in development’. See Pokja Disabilitas (n 24) 6.
Lord, Suozzi, and Taylor (n 7) 564.
Resolution of the un General Assembly a/res/27/52, 3 December 1982.
Resolution of the Commission on Human Rigths 1984/31.
un General Assembly Resolution a/res/46/119, 17 December 1991.
un General Assembly Resoultion 48/96, 20 December 1993.
Lord, Suozzi, and Taylor (n 7) 566.
Kayess and French (n 3) 14.
Lord, Suozzi, and Taylor (n 7) 568.
Kayess and French (n 3) 2.
Statement by Louise Arbour, un High Commissioner for Human Rights to the Resumed 8th Session of the Ad Hoc Committee on the Convention on the Rights of Persons with Disabilities (New York, 5 December 2006) <www.un.org/esa/socdev/enable/rights/ahc8hrcmsg.htm> accessed on 5 October 2016.
Kayess and French (n 3) 23.
Harpur (n 4) 3.
Lord, Suozzi, and Taylor (n 7) 569.
Catarina de Albuquerque, ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights – The Missing Piece of the International Bill of Human Rights’ (2010) 32 Human Rights Quaterly 144, 148.
An Optional Protocol to the International Covenant on the Economic, Social and Cultural Rights was just adopted in 2008 or more than four decades after the Convenant was adopted. For further discussion on the process of the Optional Protocol’s adoption see Catarina de Albuquerque, ibid 144–178.
See Ismail Hasani (ed), Dinamika Perlindungan Hak Konstitusional Warga: Mahkamah Konstitusi sebagai Mekanisme Nasional Baru Pemajuan dan Perlindungan ham (Pustaka Masyarakat Setara 2013); Kontras, Hak Asasi Diakui tapi Tidak Dilindungi: Catatan Hak Asasi Manusia di Masa Pemerintahan Presiden Susilo Bambang Yudhoyono [2004–2014] (Kontras 2014).
Irwanto, Eva Rahmi Kasim, Asmin Fransiska, Mimi Lusli, and Okta Siradj, Analisis Situasi penyandang Disabilitas di Indonesia: Sebuah Desk-Review (Pusat Kajian Disabilitas, Universitas Indonesia, and AusAID 2010).
Sulis Winurini, ‘Upaya Perlindungan Penyandang Disabilitas dan Tantangannya’ (2011) 3 Info Singkat Kesejahteraan Sosial 11.
Article 7(1) of the Social Welfare Law states that ‘Rehabilitasi social dimaksudkan untuk memulihkan dan mengembangkan kemampuan seseorang yang mengalami disfungsi sosial agar dapat melaksanakan fungsi sosialnya secara wajar [Social rehabilitation is aimed at rehabilitating and developing someone’s ability that suffers from social dysfunction so that he/she could undertake his/her social function properly]’. In the Explanatory Note of Article 7(1) it explains that ‘a person who suffers from social dysfunction includes physically, mentally, or physically and mentally retarded persons, prostitutes, homeless, beggars, former prisoners, former drug users, drug addicts …’ and so forth.
Article 7(2) states ‘Rehabilitasi social sebagaimana dimaksud pada ayat (1) dapat dilaksanakan secara persuasive, motivatif, koersif, baik dalam keluarga, masyarakat maupun panti sosial [Social rehabilitation as stated in the paragraph (1) is undertaken persuasively, appreciatively, coercively, within family, community or social housing].’ In the Explanatory Note of Article 7(2) it is explained that ‘coercive means the use of force in the social rehabilitation process’.
Fajri Nursyamsi, Estu D. Arifianti, Muhammad F. Aziz, Putri Bilqish, and Abi Marutama, Kerangka Hukum Disabilitas di Indonesia: Menuju Indonesia Ramah Disabilitas (Pusat Studi Hukum dan Kebijakan Indonesia 2015) 11–12.
Ibid. See also Pokja Disabilitas (n 24).
Members of this National Coalition are the Centre for Disabled Persons’ Access to the General Election, the Indonesia Blind People Union, the Mental Health Association, the Women with Disability Association, the Indonesian Federation for Physically Disabled Persons, the Legal Aid Institution, the Centre for Indonesian Legal and Policy Studies.
Janet E. Lord and Michael A. Stein, ‘The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 Washington Law Review 449, 452.
In Article 1 paragraph 18 of the draft stated that “Minister [according to this law] is the minister through which the government authorities on the social affairs is administered.”
A petition against the Ministry of Social Affairs as the Leading Sector for Disability Issues organised by the National Coalition for Disabled People in October 2015.
Editorial, ‘Perlunya Pembentukan Komnas Penyandang Disabilitas’ (Hukumonline, 12 March 2014) <www.hukumonline.com/berita/baca/lt53200600ae382/perlunya-pembentukan-komnas-penyandang-disabilitas> accessed 25 March 2017; see also Editorial, ‘Ini Poin Penting yang Diatur dalam uu Penyandang Disabilitas’ (Hukumonline, 18 March 2016) <www.hukumonline.com/berita/baca/lt56ebbdbfc1e1c/ini-poin-penting-yang-diatur-dalam-uu-penyandang-disabilitas> accessed 5 October 2016.
Pokja Disabilitas (n 24).
Harpur (n 4) 3.
Article 6 states that every handicapped person has the right to ‘(2) pekerjaan dan penghidupan yang layak sesuai dengan jenis dan derajat kecacatan, pendidikan, dan kemampuannya [employment and adequate living standards in accordance to the types and degrees of the impairment, education and abilities]’.
These include: the right to life; the rights for protection and safety in situations of risks and humanitarian emergencies; equal recognition before the law; access to justice; the right to liberty and security of person; freedom from torture, inhumane or degrading treatment or punishment; freedom for exploitation, violence and abuse; the right for protection the integrity of the person; liberty of movement and nationality; the right to education; freedom of expression and opinion, and access to information; the respect for privacy; respect for home and the family; the right to health; the right to work and employment; the right to adequate standard of living and social protection; the right for participation in political and public life; the right to participation in cultural life, recreation, leisure and sport.
Article 144 of the Persons with Disabilities Law states that ‘every person who undertakes activities that may decrease or lose the property right of a person with disabilities without a civil court approval … is sentenced in maximum 5 (five) years in prison and fined in maximum Rp. 500 million [au$ 50,000]’.
Eko Riyadi and Syarif Nurhidayat (eds), Vulnerable Groups: Kajian dan Mekanisme Perlindungannya (pusham uii 2012); Kontras (n 47).
Simon Lyster, International Wildlife Law (Grotius Publication Ltd 1985).
Lord, Suozzi, and Taylor (n 7) 570.
See e.g. Henk Schulte Nordholt and Gerry van Klinken (eds), Renegotiating Boundaries: Local Politics in Post-Suharto Indonesia (kitlv Press 2007); Carol Warren and John F. McCarthy (eds), Community, Environment and Local Governance in Indonesia: Locating the Commonweal (Routledge 2009); Agung Wardana, ‘Debating Spatial Governance in the Pluralistic Institutional and Legal Setting of Bali’ (2015) 16 Asia Pacific Journal of Anthropology 106.
‘ruu Disahkan, Hak Penyandang Disabilitas Dijamin Undang-Undang’ (Rappler, 18 March 2016) <www.rappler.com/indonesia/126291-dpr-sahkan-uu-penyandang-disabilitas> accessed 5 October 2016.
Philip J. Eldridge, The Politics of Human Rigths in Southeast Asia (Routledge 2002).
Article 98 of the Human Rights Law No. 39/1999 clearly stipulates that ‘budget for the National Commission on Human Rights is provided by the national government budget’. Similarly, Article 21 of the Presidential Decree No. 65/2005 concerning the National Commission on the Anti-Violence against Women states that ‘every cost needed for undertaking the mandates of the National Commission on Anti-Violence against Women is provided by the National Budget and other legitimate sources according to the existing laws and regulations’.
‘Pemerintah dan Pemerintah Daerah wajib menyediakan anggaran bagi pelaksanaan Penghormatan, Pelindungan, dan Pemenuhan hak Penyandang Disabilitas’.
Michael Anderson, ‘Human Rights Approaches to Environmental Protection: An Overview’ in Alan Boyle & Michael Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press 1996).
For the experience of other countries, e.g. Uganda, in using the rights-based approach in the disability issues, see Hisayo Katsui and Jukka Kumpuvuori, ‘Human Rights Based Approach to Disability in Development in Uganda: A Way to Fill the Gap between Political and Social Spaces?’ (2008) 10 Scandinavian Journal of Disability Research 227.
Michael J. Oliver, ‘Capitalism, Disability and Ideology: A Materialist Critique of the Normalization Principle’ in Robert J. Flynn, and Raymond A. Lemay (eds), A Quarter-Century of Normalization and Social Role Valorization: Evolution and Impact (University of Ottawa Press 1999) 165. See also Oliver (n 6).
For further debates on the relationship between human rights and capitalism, see Janet Dine and Andrew Fagan (eds), Human Rights and Capitalism: A Multidisciplinary Perspective on Globalisation (Edward Elgar 2006).
David Kennedy, The Dark Sides of Virtues: Reassessing International Humanitarianism (Princeton University Press 2004) 21–22.
Richard Robison and Vedi R. Hadiz, Reorganising Power in Indonesia: The Politics of Oligarchy in an Age of Markets (RoutledgeCurzon 2004); Jeffrey Winters, ‘Oligarchy and Democracy in Indonesia’ (2013) 96 Indonesia 11. See also Agung Wardana, ‘Alliances and Contestations in the Legal Production of Space: The Case of Bali’ (2014) 9 Asian Journal of Comparative Law 145.
See Kontras (n 47).
Edward Aspinall, ‘A Nation in Fragments: Patronage and Neoliberalism in Contemporary Indonesia’ (2013) 45 Critical Asian Studies 27.